HOST COMMUNITIES

STANDING COMMITTEE MEETING

Wednesday, October 3, 2007

Niagara County Department of Economic Development

6311 Inducon Corporate Drive

Sanborn, New York 14132

Staff Present:

Charles Miller, President, NPC

Mary Melloni, Recording Secretary                                                        

Stan Widger, Esq., NPC Counsel, Nixon Peabody 

Samuel M. Ferraro, Executive Director/Commissioner - Niagara County Center for                                                                                                                                                                          Economic Development

1.0          Call to Order

Vice Chairman Newlin called the meeting to order the Host Communities Standing Committee meeting. 

2.0          Roll Call

Ms. Melloni called the roll; a quorum was established.

3.0          Pledge of Allegiance

                Recited at previous meeting.

4.0          Approval of Minutes

                4.1          September 7, 2007

Mr. O’Donnell made a motion, seconded by Mr. Massaro, to approve the minutes with the revision of the title of the group to “Host Communities Standing Committee.”  Motion passed.

4.2          September 19, 2007

Mr. O’Donnell made a motion, seconded by Mr. Massaro to approve the September 19^th meeting minutes.  Motion passed.

5.0          Host Communities Greenway Fund Standing Committee Report

Mr. Newlin, Mr. Miller and Mr. Widger attended a Greenway Commission meeting on September 26.  The meeting was attended by members of the four Standing Committees.  The purpose of the meeting was to seek approval of their general protocol.  They asked for the opinion of the four Committees; three did agree with their protocol, the Host Communities Standing Committee did not, indicating more work needed to be done in regards to dispute resolution.   Mr. Widger stated that results of the meeting are outlined in the draft provided to the members [attached hereto and will become a part hereof these minutes]. NYPA’s version does not specifically address the consensus and dispute resolution issue. 

Mr. Burgasser asked what happens if there is not a consensus to set up a dispute resolution process.  Mr. Miller stated that to the best of his understanding that question was not answered.  Mr. Burgasser stated that presently it reads that if there is not a consensus then there is no dispute resolution and so it appears it would just fail.  He asked what they do when the Host Community protocols that are adopted are different or in conflict with NYPA’s – which controls? 

Mr. Widger stated that an attachment in the packet is the revised version of the generic protocol [attached hereto and made a part hereof these minutes].  At the end of the introductory paragraph I, the last sentence states “additional operating procedures may be developed by each Standing Committee to meet the specific needs of the committee, as long as those protocols are consistent with the protocols documented herein.”  Mr. Burgasser stated that this means if there is anything inconsistent, then NYPA’s protocol controls.  Mr. Daly stated that the idea is to make both documents consistent. 

A discussion was held regarding the approval of a project through the dispute resolution process agreed upon by all.  Mr. Burgasser stated that it would take a consensus again to decide on a dispute resolution—and he asked what if they do not all agree.  Mr. Daly stated that the way it would flow is that the first paragraph in a general protocol would address consensus on the consistency issues.  It would refer to a dispute resolution process.  Mr. Daly stated that the dispute resolution process for this particular committee would be enunciated in the Host Community protocol.  Mr. Burgasser stated that it would be up to each individual protocol to set up a dispute resolution, but it requires that whatever the dispute resolution is, it has to be approved by all members of the HCSC.

6.0          Standing Committee Protocol

Mr. Massaro stated that there is a question on consistency and a question as to which protocol supersedes the other.  Mr. Daly stated that both protocols have to be consistent with each other. 

Mr. Massaro stated that he and Mr. Granto met with Mr. Daly in his office, with Mr. Chase and some other gentlemen on the phone, and when they left that meeting they thought they had an agreement that a project would be presented twice to see if it can get a vote and if it cannot get a vote then there was a question of the Chairman and NYPA agreeing whether it was consistent with the plan.  If they did agree that it is consistent with the plan, then it would go back to the Board for a majority vote, and that was in NYPA’s recent version.  Mr. Massaro stated they went a step further and said if either does not agree it goes back to the floor for a two-thirds vote with the one who does agree being counted in the two-thirds.  If both disagree it goes back to the Board for a two thirds vote, which means the total complement of the Board, absent those two individuals, would have to agree.  If it did not pass and the party was aggrieved, it would have a right for a declaratory judgment.  Mr. Massaro stated that is what he and Mr. Granto understood was agreed to and generally acceptable after that meeting.  He said that this has been changed drastically and it is unacceptable to the school district.

Mr. Daly stated that it has not been changed drastically.  It consistently tracked what was discussed, up until it gets to whether or not the NYPA representative and Chairman disagree.  He stated that the way this has been put together directly addresses their critical interests in making sure that projects are consistent with the Greenway Commission.  He stated that if there is not agreement between the Chair and NYPA rep, the project does not necessarily die there.  If somebody is being the ‘bad actor” the project proponent can take that project forward for a declaratory judgment and the “bad actor” will have to pay for it.  Mr. Massaro stated he understands his position; however, it negated everything that was discussed in the teleconference call.  The things that motivated he and Mr. Granto were:

1)    Eliminate the decision of this committee and leave it to two individuals

2)    It puts an onus on somebody that goes directly into Court. 

3)    There should be no municipality that has the right to veto another municipality      unless it is in agreement with others.

Mr. Massaro stated that they cited an example of #3; it would be wrong for the City of Niagara Falls to veto a project that Lewiston thinks is important or vice versa just because we are fortunate to have the Mayor of the City of Niagara Falls as the Chairperson to veto a project that Lewiston thinks is important or vice versa.  Everyone on the committee should have a right to make its determination and what has been done in the recent voting is that determination is being given primarily to NYPA.  Mr. Massaro explained that even if there is a disagreement, and the Chairman disagrees, the project does not move forward unless it is put through the onus of a declaratory judgment and that is wrong.  It is contrary to the spirit of the agreement and the spirit of how the communities have been working in all facets of the Host Agreement.

6.0          Standing Committee Protocol (Continued…)

Mr. Daly stated that if the NYPA an entity is saying no to a project they are going to have to justify that either orally or in writing to this committee.  There has to be a discussion of what the objection is.   Mr. Massaro stated that it will deprive all the members, except the Chairperson and NYPA, the right to vote on a project and that was never intended in the agreement.

Mr. Burgasser stated that the NYPA Agreement awarded $150 million to the taxpayers of Niagara County.  The Agreement says that this money is to be spent in Niagara County.  Further, NYPA is asking for the Committee to agree to an ultimate veto power of NYPA and taking away this $150 million.  Even the President of the U.S. can be overridden on his veto power.  It gives anyone in this room that veto power to deny what has been set up in an Agreement.

Mr. Chase stated that $150 million was awarded to Niagara County for projects consistent with the Greenway; that is what the Agreement indicates the money would be spent for.  The terms of the settlement agreement talk about working in a cooperative manner and striving for consensus in reaching decisions at the Standing Committee’s level.  It does not say anything about voting.  Mr. Chase stated that the issue on the table is to try to come up with a mechanism to determine eligibility of a project in the absence of consensus.  He stated that they have proposed a number of options to this group in order to get to that point.  He stated that he disagrees with Mr. Massaro in terms of what was agreed to on the teleconference and that NYPA has consistently been opposed to voting if a project is not deemed to be consistent with the Greenway.  He does not feel one entity should have the ability to determine consistency without it being questioned by the other members.  For a variety of reasons, both legal and otherwise, projects that are going to use this money have to be consistent with the Plan.  Once that is determined, the NYPA has a lesser interest in how the money and how much money is going to be spent.  Within the Host Communities, NYPA fully endorses the idea that the local municipalities and school districts will set the priorities on how the money is spent.  NYPA’s main interest in this is on the consistency level and will not give up on that.

Mr. Fluskey stated that according to Mr. Chase, NYPA would not want to leave the consistency determination in the hands of one entity, however, that is what NYPA’s current protocol does.  A discussion ensued with Mr. Chase on the issue of a veto; with Mr. Fluskey stating one entity can determine the fate of the project.  Mr. Chase stated if an entity thinks a project is not consistent, the aggrieved party has the ability to seek a declaratory judgment, seek satisfaction in court and the parties on the losing side of the decision would have to pay the legal costs involved on both sides of the argument. 

Mr. Fluskey stated that the problem is that NYPA has given the Chairperson and NYPA, short of going to Court, an absolute veto on that decision.  Mr. Chase stated NYPA heard that was what the HC’s wanted as part of the dispute resolution process, so it was included. Mr. Fluskey stated there should be some sort of process, short of going to court; a committee process.  He stated that initially the HC protocol called for a majority vote which is the most common committee process known.  Then the Committee moved off that and decided on a two-thirds vote and that is particularly reasonable in that the Agreement that ultimately governs here is the Host Community Agreement and no one can contend that that agreement compels or mandates consensus.  The language says that the Committee will “strive” to achieve consensus.  Mr. Fluskey explained that this group’s proposed protocol does that, but it also recognizes the reality that there may come a day 20 years from now where the group cannot reach an
 

6.0          Standing Committee Protocol (Continued…)

agreement and when that happens, initially it was decided to go to a majority vote; now it is being said that consistency is very important and majority may not do it, so go to a super majority (two-thirds).  Mr. Fluskey stated that this is very reasonable and more importantly, it is consistent with the governing Agreement and that NYPA has never taken this position. 

Mr. Massaro asked if any of the projects can go forward with a two-thirds or majority vote while they finalize the protocols.  Mr. Chase stated as long as all projects are consistent with the Greenway Plan.  Mr. Massaro stated that would be with a majority vote here.   Mr. Chase said if they can reach consensus.  Mr. Chase said he is interested in exploring the idea of penalties in the case of a truly bad project…he stated that is the first new idea he has heard in a while.  He stated they are willing to look at anything that addresses the Host Communities’ interests as well as NYPA’s.   They are still optimistic that reasonable people can agree to a resolution process.

Mr. Newlin stated that in the short term there may not be some of the problems they are anticipating and it might be worthwhile to consider floating some projects amongst the group to see if there is agreement among the first few projects.  Mr. Newlin stated that it can be difficult to let their prospective groups know that they are going to start floating projects if they do not have a solid understanding of the criteria for consistency to the Greenway.  Mr. Richards stated he has a project—his park project that he has been working on it for 12 years. 

Mr. Ferraro stated he is not prepared to respond regarding any projects and if the group is going to be crafting protocol based around proposed projects, there is exposure to consider.  He stated the group should be crafting a protocol that protects everyone for 50 years.  Mr. Ferraro stated that Mr. Chase stated years ago that they do not want to be in the position of calling balls and strikes…and Mr. Ferraro stated he feels that is the position they will be putting themselves in if they start discussing or basing the protocols on projects that may or may not happen. 

Mr. Chase stated that he did not mean to try to mold protocols around projects; what he was suggesting is that maybe there is a way of moving forward with projects while proceeding to finalize protocols if it is going to take some time.  Mr. Ferraro stated that his problem with that, from the County’s standpoint, is that they are dealing with other Standing Committees that have yet to foster any type of project and they also have to deal with the Greenway Commission).  He would not want to see that, through the exposure of various projects, they give the Commission a heads up as to what may or may not come and that will prepare them for a thumbs up or down in terms of our request for consistency. 

Mr. Massaro stated he appreciates what Mr. Ferraro says, but except for the consensus issue the group is close to coming to an agreement.  If the protocols call for all the criteria of presenting the proposals and leave open the question of what is consensus or the way to resolve it, they can temporarily accept something by a two-thirds vote, but recognizing it still has to be resolved. 

6.0          Standing Committee Protocol (Continued…)

Mr. Chase explained that their concern is that if a proposed project is not consistent with the Greenway Plan, and an entity or entities approve it based on a vote, what would be the recourse.  Mr. Fluskey stated that it would have to be over a two-thirds vote. Mr. Massaro stated that is why it could go to a declaratory judgment. 

Mr. Hapeman, attorney for Niagara-Wheatfield School District, stated that his understanding from NYPA is that they are operating under the assumption that the seven members of this committee are unable to make a determination whether a project is consistent with the Greenway and that NYPA is the only one who can clearly make that determination, and this is why NYPA does not want the two-thirds vote.

Mr. Risman, attorney for the Town of Niagara, stated that for matters that may have some political ramifications, it is common to go to a super majority.  For example, he explained that 30 years from now the individuals representing NYPA could be political and want to stop a project.  Therefore, the two-thirds vote is the solution.  Mr. Chase argued that that is why there is the option of a declaratory judgment.  Mr. Risman stated that could delay a project four years and the project may even be dead by then and it is not a practical process under any circumstances.

Mr. Newlin stated he appreciates NYPA’s concern with regard to consistency; however, the Coalition should accept the point that the Standing Committee is going to be the jury on matters concerning consistency and the 7 members other than the NYPA are individuals who work in bodies where there is a lot of deliberation and public pressure.  The determination of consistency will be made after a subjective analysis—not an objective analysis.  Mr. Newlin stated that in his four years as supervisor his experience is that two people who are very smart and working hard towards a consensus, at the end of the day can disagree despite everyone’s best efforts and attempts.  That is what concerns the members other than NYPA. 

Mr. Burgasser stated that the language from NYPA at this point is totally unacceptable and he suggested giving NYPA the opportunity to resubmit comments back to the Host Communities and see if the parties can reach an agreement.  Mr. Daly stated they are certainly open to looking at any alternatives that protect what he and Mr. Chase have expressed over time are the NYPA’s concerns.  With respect to NYPA continuing to rewrite, Mr. Daly stated that the HC’s should do the writing at this stage and try to come up with something and they are open to anything that addresses their critical interests as well. 

Mr. Burgasser stated that at the last meeting he read the presentation from NYPA and it left the drafting of the consensus part to Mr. Widger.  That was done, but NYPA is now saying that what Mr. Widger wrote up is not what was discussed that day, even though it seems like Mr. Widger wrote that language pursuant to NYPA’s request.  Mr. Daly stated again that they are open to other ideas.  Mr. Burgasser asked if they looked at the ones that Mr. Widger drew up at their request.  Mr. Chase stated that all of those things and many other things were discussed at the meeting and they did ask Stan, with his client’s approval, if he could draft what everybody thought they agreed to.  Mr. Burgasser asked if he would look at those proposals.  Mr. Chase stated those have been the subject of a number of discussions.  Mr. Burgasser asked if there was
 

6.0          Standing Committee Protocol (Continued…)

anything wrong with the language that Mr. Widger came up with.  Mr. Chase stated if it is the same language he is thinking of (centered around voting); if the Chairman and NYPA agreed that the project was inconsistent it still would pass the vote.  Mr. Newlin stated that they are of a body that after something is considered and discussed, they have to bring it to a vote.  That is a practice of public bodies and in the final analysis will be hard to get away from. 

Mr. Miller stated that  he would like to understand what the implications are if the other seven members of the Standing Committee will not agree to giving NYPA the
“veto” power over this or not agreeing to a two-thirds vote. 

Mr. Daly stated they are not at a point where they are issuing an ultimatum; that is not where they are or what they are about.  It is about all eight in the room reaching an agreement.  If it takes longer that is okay, but it will be an agreement they can all live with. He  stated he has heard discussions about a good project that might not get done because of too much political power; and if a vote is allowed there are problems.

7.0          Next Meeting

It was decided that the Standing Committee would meeting again on Friday, October 12, 2007, at 12:00 noon. 

8.0          Adjournment

Mr. Massaro made a motion, seconded by Mr. O’Donnell, to adjourn the meeting.  Meeting adjourned at 3:38 p.m.

Respectfully submitted,                                                                               Reviewed by,

_____________________________                                            _____________________________

Mary P. Melloni                                                                                                Donald Rappold

Recording Secretary                                                                       Secretary